BILL NUMBER: SB 588 AMENDED
BILL TEXT
AMENDED IN SENATE APRIL 29, 1999
AMENDED IN SENATE APRIL 14, 1999
AMENDED IN SENATE APRIL 5, 1999
INTRODUCED BY Senator Rainey
FEBRUARY 23, 1999
An act to amend Section 4009 of the Family Code, and to amend
Sections 11350 , 11350.1, and 11477 of the Welfare and Institutions
Code, relating to support.
LEGISLATIVE COUNSEL'S DIGEST
SB 588, as amended, Rainey. Support obligations to CalWORKs
recipients.
Existing law provides for the California Work Opportunity and
Responsibility to Kids (CalWORKs) program, under which each county
provides cash assistance and other benefits to qualified low-income
families.
Existing law requires that in any case of separation or desertion
of a parent or parents from a child or children that results in the
granting of CalWORKs benefits, the noncustodial parent or parents
shall be obligated to the county for an amount equal to the amount
specified in an order for the support and maintenance of the family
issued by a court of competent jurisdiction. In the absence of an
order, the noncustodial parent or parents would be liable for the
amount of support that would have been specified in such an order,
provided that any such amount in excess of the aid paid to the family
under the CalWORKs program shall not be retained by the county, but
disbursed to the family.
This bill would provide that liability of a parent or parents
under this provision may be made retroactive to the date the
complaint or other pleading initiating the support action was served
on the defendant. It would also provide that if the court finds
that an obligor has evaded service of a complaint or other initial
pleading to establish child support, the court shall order child
support retroactive to the date the complaint was filed with the
court.
Existing law requires that the amount of this obligation be
determined by using the appropriate child support guidelines
currently in effect and requires this obligation to be calculated in
a certain manner if one or neither parent is a custodial parent.
This bill would delete this latter requirement and would provide,
instead, that if the child does not reside with either parent, the
custodial parent's income shall be zero for purposes of determining
guideline child support.
Existing law requires that, as a condition of CalWORKs
eligibility, the applicant assign to the county any rights to support
which he or she may have from another person, either in his or her
own behalf or in behalf of any other family member.
This bill would permit, in any action in which support has been
assigned to the county by a CalWORKs recipient, upon the stipulation
of the district attorney and the support obligor, the court to
suspend the prospective accrual of interest on the unpaid judgment,
subject to the meeting of specified conditions.
Existing law provides that, in any action brought by the district
attorney for the support of a minor child or children receiving
CalWORKs benefits, the action may be prosecuted in the name of the
county on behalf of the child, children, or a parent of the child or
children. Under existing law, judgment in an action brought pursuant
to these provisions may be rendered pursuant to a noticed motion.
This bill would further provide that an original support order
made pursuant to the above provisions may be made retroactive to the
date the complaint or other initial pleading was served on the
defendant being ordered to pay child support.
Existing law also provides generally that any order for child
support may be retroactive to the date of filing the notice of motion
or order to show cause, or to any subsequent date, except as
provided by federal law.
This bill would provide, instead, that an original order for child
support may be made retroactive to the date the complaint or other
initial pleading was served on the defendant being ordered to pay
child support.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 4009 of the Family Code is amended to read:
4009. An original order for child support may be made retroactive
to the date the complaint or other initial pleading was served on
the defendant being ordered to pay child support.
SEC. 2. Section 11350 of the Welfare and Institutions Code is
amended to read:
11350. (a) In any case of separation or desertion of a parent or
parents from a child or children which results in aid under this
chapter being granted to that family, the noncustodial parent or
parents shall be obligated to the county for an amount equal to the
following:
(1) The amount specified in an order for the support and
maintenance of the family issued by a court of competent
jurisdiction; or in the absence of such court order, the amount
specified in paragraph (2).
(2) The amount of support which would have been specified in an
order for the support and maintenance of the family during the period
of separation or desertion provided that this amount in excess of
the aid paid to the family shall not be retained by the county, but
disbursed to the family. However, a court may order that the
liability of a parent or parents under this paragraph may be made
retroactive to the date the complaint or other pleading initiating
the action was served on the defendant.
(3) The obligation shall be reduced by any amount actually paid by
the parent directly to the custodian of the child or to the district
attorney of the county in which the child is receiving aid during
the period of separation or desertion for the support and maintenance
of the family.
(4) Notwithstanding any other provision of law, if the court finds
that an obligor has evaded service of a complaint or other initial
pleading to establish child support, the court shall order child
support retroactive to the date the complaint was filed with the
court.
(b) The district attorney shall take appropriate action pursuant
to this section as provided in subdivision (l) of Section 11475.1.
The district attorney may establish liability for child support as
provided in subdivision (a) when public assistance was provided by
another county or by other counties.
(c) The amount of the obligation established under paragraph (2)
of subdivision (a) shall be determined by using the appropriate child
support guidelines currently in effect. If the child does not
reside with either parent, the custodial parent's income shall be
zero for purposes of determining guideline child support. The
parents shall pay the amount of support specified in the support
order to the district attorney.
SEC. 3. Section 11350.1 of the Welfare and Institutions Code is
amended to read:
11350.1. (a) Notwithstanding any other statute, in any action
brought by the district attorney for the support of a minor child or
children, the action may be prosecuted in the name of the county on
behalf of the child, children, or a parent of the child or children.
The parent who has requested or is receiving support enforcement
services of the district attorney shall not be a necessary party to
the action but may be subpoenaed as a witness. Except as provided in
subdivision (e), in an action under this section there shall be no
joinder of actions, or coordination of actions, or cross-complaints,
and the issues shall be limited strictly to the question of
parentage, if applicable, and child support, including an order for
medical support. A final determination of parentage may be made in
any action under this section as an incident to obtaining an order
for support. An action for support or parentage pursuant to this
section shall not be delayed or stayed because of the pendency of any
other action between the parties.
(b) Judgment in an action brought pursuant to this section, and in
an action brought pursuant to Section 11350, if at issue, may be
rendered pursuant to a noticed motion, that shall inform the
defendant that in order to exercise his or her right to trial, he or
she must appear at the hearing on the motion. An original order for
support made pursuant to this section may be made retroactive to the
date the complaint or other initial pleading was served on the
defendant being ordered to pay child support.
If the defendant appears at the hearing on the motion, the court
shall inquire of the defendant if he or she desires to subpoena
evidence and witnesses, if parentage is at issue and genetic tests
have not already been conducted whether he or she desires genetic
tests, and if he or she desires a trial. If the defendant's answer
is in the affirmative, a continuance shall be granted to allow the
defendant to exercise those rights. A continuance shall not postpone
the hearing to more than 90 days from the date of service of the
motion. If a continuance is granted, the court may make an order for
temporary support without prejudice to the right of the court to
make an order for temporary support as otherwise allowed by law.
(c) In any action to enforce a spousal support order the action
may be pled in the name of the county in the same manner as an action
to establish a child support obligation. The same restrictions on
joinder of actions, coordination of actions, cross-complaints, and
delay because of the pendency of any other action as relates to
actions to establish a child support obligation shall also apply to
actions to enforce a spousal support order.
(d) Nothing contained in this section shall be construed to
prevent the parties from bringing an independent action under the
Family Code and litigating the issues of support, custody,
visitation, or protective orders. In that event, any support,
custody, visitation, or protective order issued by the court in an
action pursuant to this section shall be filed in the action
commenced under the Family Code and shall continue in effect until
modified by a subsequent order of the court. To the extent that the
orders conflict, the court order last issued shall supersede all
other orders and be binding upon all parties in that action.
(e) (1) After a support order, including a temporary support order
and an order for medical support only, has been entered in an action
brought pursuant to this section, the parent who has requested or is
receiving support enforcement services of the district attorney
shall become a party to the action brought pursuant to this section,
only in the manner and to the extent provided by this section, and
only for the purposes allowed by this section.
(2) Notice of the parent's status as a party shall be given to the
parent by the district attorney in conjunction with the notice
required by subdivision (e) of Section 11478.2. The complaint shall
contain this notice. Service of the complaint on the parent in
compliance with Section 1013 of the Code of Civil Procedure, or as
otherwise provided by law, shall constitute compliance with this
section. In all actions commenced under the procedures and forms in
effect on or before December 31, 1996, the parent who has requested
or is receiving support enforcement services of the district attorney
shall not become a party to the action until he or she is joined as
a party pursuant to an ex parte application or noticed motion for
joinder filed by the district attorney or a noticed motion filed by
either parent. The district attorney shall serve a copy of any order
for joinder of a parent obtained by the district attorney's
application on both parents in compliance with Section 1013 of the
Code of Civil Procedure.
(3) The parent who has requested or is receiving support
enforcement services of the district attorney is a party to an action
brought under this section for issues relating to the support,
custody, and visitation of a child, and for restraining orders, and
for no other purpose. The district attorney shall not be required to
serve or receive service of papers, pleadings, or documents, or
participate in, or attend any hearing or proceeding relating to
issues of custody or visitation, except as otherwise required by law.
Orders concerning custody and visitation may be made in an action
pursuant to this subdivision only if orders concerning custody and
visitation have not been previously made by a court of competent
jurisdiction in this state or another state and the court has
jurisdiction and is the proper venue for custody and visitation
determinations. All issues regarding custody and visitation shall be
heard and resolved in the manner provided by the Family Code.
Except as otherwise provided by law, the district attorney shall
control support and parentage litigation brought pursuant to this
section, and the manner, method, and procedures used in establishing
parentage and in establishing and enforcing support obligations
unless and until the parent who requested or is receiving support
enforcement services has requested in writing that the district
attorney close his or her case and the case has been closed in
accordance with federal regulation.
(f) (1) A parent who has requested or is receiving support
enforcement services of the district attorney may take independent
action to modify a support order made pursuant to this section while
support enforcement services are being provided by the district
attorney. The parent shall serve the district attorney with notice
of any action filed to modify the support order and provide the
district attorney with a copy of the modified order within 15
calendar days after the date the order is issued.
(2) A parent who has requested or is receiving support enforcement
services of the district attorney may take independent action to
enforce a support order made pursuant to this section while support
enforcement services are being provided by the district attorney with
the written consent of the district attorney. At least 30 days
prior to filing an independent enforcement action, the parent shall
provide the district attorney with written notice of the parent's
intent to file an enforcement action that includes a description of
the type of enforcement action the parent intends to file. Within 30
days of receiving the notice, the district attorney shall either
provide written consent for the parent to proceed with the
independent enforcement action or notify the parent that the district
attorney objects to the parent filing the proposed independent
enforcement action. The district attorney may object only if the
district attorney is currently using an administrative or judicial
method to enforce the support obligation or if the proposed
independent enforcement action would interfere with an investigation
being conducted by the district attorney. If the district attorney
does not respond to the parent's written notice within 30 days, the
district attorney shall be deemed to have given consent.
(3) The court shall order that all payments of support shall be
made to the district attorney in any action filed under this section
by the parent who has requested, or is receiving, support enforcement
services of the district attorney unless support enforcement
services have been terminated by the district attorney by case
closure as provided by federal law. Any order obtained by a parent
prior to support enforcement services being terminated in which the
district attorney did not receive proper notice pursuant to this
section shall be voidable upon the motion of the district attorney.
(g) Any notice from the district attorney requesting a meeting
with the support obligor for any purpose authorized under this
section shall contain a statement advising the support obligor of his
or her right to have an attorney present at the meeting.
(h) For the purpose of this section, "a parent who is receiving
support enforcement services" includes a parent who has assigned his
or her rights to support pursuant to Section 11477.
(i) The Judicial Council shall develop forms to implement this
section. These forms shall be available no later than July 1, 1998.
SEC. 4. Section 11477 of the Welfare and Institutions Code is
amended to read:
11477. As a condition of eligibility for aid paid under this
chapter, each applicant or recipient shall do all of the following:
(a) (1) Assign to the county any rights to support from any other
person the applicant or recipient may have in his or her own behalf
or in behalf of any other family member for whom the applicant or
recipient is applying for or receiving aid, not exceeding the total
amount of cash assistance provided to the family under this chapter.
Receipt of public assistance under this chapter shall operate as an
assignment by operation of law. An assignment of support rights to
the county shall also constitute an assignment to the state. If
support rights are assigned pursuant to this subdivision, the
assignee may become an assignee of record by the district attorney or
other public official filing with the court clerk an affidavit
showing that an assignment has been made or that there has been an
assignment by operation of law. This procedure does not limit any
other means by which the assignee may become an assignee of record.
(2) Support that has been assigned pursuant to paragraph (1) and
that accrues while the family is receiving aid under this chapter
shall be permanently assigned until the entire amount of aid paid has
been reimbursed.
(3) If the federal government does not permit states to adopt the
same order of distribution for preassistance and postassistance child
support arrears that are assigned on or after October 1, 1998,
support arrears that accrue before the family receives aid under this
chapter that are assigned pursuant to this subdivision shall be
assigned as follows:
(A) Child support assigned prior to January 1, 1998, shall be
permanently assigned until aid is no longer received and the entire
amount of aid has been reimbursed.
(B) Child support assigned on or after January 1, 1998, but prior
to October 1, 2000, shall be temporarily assigned until aid under
this chapter is no longer received and the entire amount of aid paid
has been reimbursed or until October 1, 2000, whichever comes first.
(C) On or after October 1, 2000, support assigned pursuant to this
subdivision that was not otherwise permanently assigned shall be
temporarily assigned to the county until aid is no longer received.
(D) On or after October 1, 2000, support that was temporarily
assigned pursuant to this subdivision shall, when a payment is
received from the federal tax intercept program, be temporarily
assigned until the entire amount of aid paid has been reimbursed.
(4) If the federal government permits states to adopt the same
order of distribution for preassistance and postassistance child
support arrears, child support arrears shall be assigned, as follows:
(A) Child support assigned pursuant to this subdivision prior to
October 1, 1998, shall be assigned until aid under this chapter is no
longer received and the entire amount has been reimbursed.
(B) On or after October 1, 1998, child support assigned pursuant
to this subdivision that accrued before the family receives aid under
this chapter and that was not otherwise permanently assigned, shall
be temporarily assigned until aid under this chapter is no longer
received.
(C) On or after October 1, 1998, support that was temporarily
assigned pursuant to this subdivision shall, when a payment is
received from the federal tax intercept program, be temporarily
assigned until the entire amount of aid paid has been reimbursed.
(b) In any action where support has been assigned pursuant to this
section, upon stipulation of the district attorney and the obligor,
the court may order that prospective accrual of interest on the
unpaid judgment be suspended, subject to all of the following
conditions:
(1) The obligor shall be required to make immediate payment of all
outstanding unassigned child support arrearages.
(2) The obligor shall be required to make specified monthly
payments toward assigned child support arrearages, calculated to pay
off the balance within a reasonable period of time considering the
balance owing and the income and assets of the obligor.
(3) The obligor shall be required to meet all current child
support payment obligations.
(4) If the family is receiving public assistance at the time a
stipulation suspending interest is made, the stipulation and order
shall require the obligor to pay the full amount of unassigned child
support arrears within 90 days after being notified by the district
attorney. The district attorney shall provide this notice within 10
days of being notified that the family is no longer receiving public
assistance. The notice shall state only that the total unassigned
arrears must be paid within 90 days and shall not provide any
information as to the family's public assistance status.
(c) If an obligor who is party to an order made pursuant to
subdivision (b) fails to meet any of the conditions stated for more
than 60 days, interest shall begin to accrue on any outstanding
support obligations. An agreement and order to suspend interest may
be made only one time every seven years after the first order was
made.
(d) (1) Cooperate with the county welfare department and district
attorney in establishing the paternity of a child of the applicant or
recipient born out of wedlock with respect to whom aid is claimed,
and in establishing, modifying, or enforcing a support order with
respect to a child of the individual for whom aid is requested or
obtained, unless the applicant or recipient qualifies for a good
cause exception as provided in Section 11477.04. The granting of aid
shall not be delayed or denied if the applicant is otherwise
eligible, if the applicant completes the necessary forms and agrees
to cooperate with the district attorney in securing support and
determining paternity, where applicable. The district attorney shall
have staff available, in person or by telephone, at all county
welfare offices and shall conduct an interview with each applicant to
obtain information necessary to establish paternity and establish,
modify, or enforce a support order at the time of the initial
interview with the welfare office. The district attorney shall make
the determination of cooperation. If the applicant or recipient
attests under penalty of perjury that he or she cannot provide the
information required by this subdivision, the district attorney shall
make a finding regarding whether the individual could reasonably be
expected to provide the information, before the district attorney
determines whether the individual is cooperating. In making the
finding, the district attorney shall consider all of the following:
(A) The age of the child for whom support is sought.
(B) The circumstances surrounding the conception of the child.
(C) The age or mental capacity of the parent or caretaker of the
child for whom aid is being sought.
(D) The time that has elapsed since the parent or caretaker last
had contact with the alleged father or obligor.
(2) Cooperation includes the following:
(A) Providing the name of the alleged parent or obligor and other
information about that person if known to the applicant or recipient,
such as address, social security number, telephone number, place of
employment or school, and the names and addresses of relatives or
associates.
(B) Appearing at interviews, hearings, and legal proceedings
provided the applicant or recipient is provided with reasonable
advance notice of the interview, hearing, or legal proceeding and
does not have good cause not to appear.
(C) If paternity is at issue, submitting to genetic tests,
including genetic testing of the child, if necessary.
(D) Providing any additional information known to or reasonably
obtainable by the applicant or recipient necessary to establish
paternity or to establish, modify, or enforce a child support order.
(3) A recipient or applicant shall not be required to sign a
voluntary declaration of paternity, as set forth in Chapter 3
(commencing with Section 7570) of Part 2 of Division 12 of the Family
Code, as a condition of cooperation.